Citation Nr: 1125566
Decision Date: 07/07/11 Archive Date: 07/15/11
DOCKET NO. 10-03 068 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUES
1. Entitlement to service connection for idiopathic pulmonary fibrosis.
2. Entitlement to an initial disability evaluation in excess of 30 percent for bilateral hearing loss.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
S. Layton, Associate Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from February 1952 to March 1954.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA).
In April 2008, the Veteran testified during a videoconference hearing before the undersigned Acting Veterans Law Judge; a transcript of that hearing is of record.
In April 2011, the Veteran submitted additional evidence directly to the Board, with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2010).
The issues of entitlement to service connection for an acquired psychiatric disorder, to include depression, and entitlement to a total disability rating based on individual unemployability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The issue of entitlement to a higher rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
Idiopathic pulmonary fibrosis was not shown in service, and any current idiopathic pulmonary fibrosis is unrelated to service or to a disease or injury of service origin.
CONCLUSION OF LAW
Idiopathic pulmonary fibrosis was neither incurred in nor aggravated by military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008.
The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')."
The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Concerning the claim for service connection, the record reflects that the Veteran was mailed a letter in April 2009 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. This letter also provided him with appropriate notice with respect to the disability-rating and effective-date elements of his claims. The July 2009 rating decision reflects the initial adjudication of the claims after issuance of this letter. Hence, the April 2009 letter-which meet the content of notice requirements described in Dingess/Hartman and Pelegrini concerning service connection claims-also meet the VCAA's timing of notice requirement.
The Board also finds VA has complied with its duty to assist the Veteran in the development of the claims herein decided. In attempting to obtain the Veteran's service treatment records, the RO was informed that some of these records are presumed to have been destroyed in a 1973 fire at the National Personnel Records Center (NPRC). In cases where the Veteran's service records are unavailable, a heightened duty exists to assist the Veteran in the development of the case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (where the veteran's service medical records have been destroyed or lost, there is a duty to advise the veteran to obtain other forms of evidence). In this case, although the majority of the Veteran's service treatment records appear to be unavailable, the VA has obtained all available service treatment records, to include his service separation examination report. The RO made a formal finding in April 2009 that the remaining service treatment records were unavailable. The Veteran was informed of the RO's efforts in a May 2009 letter and requested that the Veteran submit any relevant documents and evidence in his possession that supported his claims. The letter informed the Veteran that if the requested information was not received within ten days from the date of the letter, the RO would proceed with the adjudication of his claims. No response was received from the Veteran within the requested timeframe. Thus, the Board concludes the VA's heightened duty to assist the Veteran is satisfied.
The Veteran's available service treatment records (STRs) are on file. VA Medical Center and private treatment records have been obtained. VA examinations have been performed. Neither the Veteran nor his representative has identified any further outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any such evidence.
In sum, the Board is satisfied any procedural errors in the development and consideration of the claim by the originating agency were insignificant and not prejudicial to the Veteran. The Board will accordingly address the merits of the claim.
II. Service Connection
A. Law and Regulations
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).
A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997).
Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d).
Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Savage, 10 Vet. App. 488, 495-97. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96.
Additionally, disability that is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995).
In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b).
B. Factual Background
In this case, the Veteran's March 1954 separation examination report reflects that he had normal lungs and chest. The report further reflects that the Veteran denied having any other illnesses, injuries, operations or diseases other than the ones listed on the examination report.
In the Veteran's original claim for disability benefits submitted in March 2009, the Veteran indicated that his idiopathic pulmonary fibrosis began in January 1990.
In a March 2009 statement, the Veteran indicated that while on active duty, his job responsibilities required him to make frequent visits to the flight line. He recalled that during each of those trips he was subjected to the inhalation of jet exhaust fumes. He said that the military provided no respiratory protection. He expressed that damage to his lungs progressed very slowly until many years later when he began to experience lung symptoms. He opined that the military currently provides respiratory protection. He said that in the mid 1990s he noticed a significant shortness of breath in his daily activities. After considerable testing, he said he received a diagnosis of idiopathic pulmonary fibrosis. He attributed his idiopathic pulmonary fibrosis to breathing jet exhaust fumes while he was on active duty.
An undated letter from M.S., M.D., submitted in March 2009, reflects that the Veteran had a diagnosis of idiopathic pulmonary fibrosis with bronchiostasis and moderate restrictive impairment. The letter indicates that the Veteran had significant shortness of breath with minimal activity.
On VA examination in May 2009, the Veteran reported receiving a formal diagnosis of idiopathic pulmonary fibrosis in 2004, but he recalled having symptoms in 1976 or 1977. He saw a pulmonologist twice a year. After performing a series of pulmonary tests, the examiner gave a diagnosis of idiopathic pulmonary fibrosis. After reviewing the available service treatment records and rest of the claims file, the examiner stated that he could not conclude that the Veteran's idiopathic pulmonary fibrosis was secondary to his exposure to jet fuel while in service without resorting to mere speculation. The examiner explained that the opinion given was due to the lack of evidence shown of a pulmonary condition since the Veteran's discharge in the 1950s through his diagnosis of idiopathic pulmonary fibrosis in 2004.
In May 2009, the Veteran described his duties while he was in the military. He emphasized that he was exposed to jet exhaust fumes, and the military did not provide him with protective equipment. He remarked that he began to notice shortness of breath and dizziness in the mid-1970s. He recalled experiencing more shortness of breath in 1983. In 1997, he said that he began to suffer significant shortness of breath. He stated that he was finally diagnosed with idiopathic pulmonary fibrosis. He cited an Air Force document which described jet fuel. He summarized a study from the Indiana University School of Medicine which indicated that jet fuel exposure had significant implications for the development of pulmonary disorders. He cited regulations which show that military personnel now receive training on hazards and precautions when working around jet fuel. He quoted from OSHA, AFOSH, and DOT articles which concerned petroleum distillates.
In the Veteran's August 2009 Notice of Disagreement, the Veteran remarked that according to research, doctors usually could not establish the specific cause of idiopathic pulmonary fibrosis, and only in a very few cases can the cause be determined. He said that researched determined that most people suffering from idiopathic pulmonary fibrosis were exposed to the cause many years prior to the symptoms appearing. He remarked that to date there had been no satisfactory explanation for the differences in age at the onset, presentation, clinical course, and response to therapy of some patients with idiopathic pulmonary fibrosis. He cited three articles to support his statements. The Veteran added that his symptoms began in the 1970s and continued intermittently until he was finally given a diagnosis of idiopathic pulmonary fibrosis. He reiterated the contentions he made in May 2009 concerning the toxicity of jet exhaust vapors.
In September 2009, the Veteran told a VA pulmonologist that he began having intermittent shortness of breath in the 1970s. He indicated that he received a diagnosis of idiopathic pulmonary fibrosis in September 2004. The examiner gave a diagnosis of idiopathic pulmonary fibrosis.
In the Veteran's VA form 9, submitted in January 2010, the Veteran remarked that as his service treatment records were destroyed by fire several years ago, the VA could not have had a discharge examination report for him. The Veteran remarked that research shows that idiopathic pulmonary fibrosis takes years for the symptoms to develop. He quoted from studies concerning the hazards of jet fuel. He felt that the doctrine of reasonable doubt applied in his case. The Veteran was adamant that U.S. Government Sources clearly indicated a connection between his service and his diagnosis of idiopathic pulmonary fibrosis.
In February 2011, the Veteran's spouse recalled her husband experiencing a shortness of breath. The Veteran had told her that he served around jet fuel and jet engines while on active duty. She mentioned that as time progressed, the Veteran became too weak to climb stairs and endure construction dust.
During the Veteran's April 2011 Board hearing, the Veteran testified that he could not breathe without supplementary oxygen. He said that he first sought treatment for being short of breath in 1977. He recalled being given an inhaler at that time. Later, another doctor told him that he had a respiratory problem but could not determine the cause. He said that while on active duty, he was exposed to jet fuel. He remarked that he had discussed the cause of his idiopathic pulmonary fibrosis with doctors and was told that there was no way to absolutely confirm that his exposure to jet fuel while on active duty was the cause of his idiopathic pulmonary fibrosis. However, OSHA had indicated that jet fuel and jet engine exhaust had a deleterious effect on the respiratory system. He added that his problem was a very slow and progressive problem.
C. Analysis
As an initial matter, as noted above, it appears that some (but not all) of Veteran's treatment records may have been destroyed in a 1973 fire at the NPRC in St. Louis, Missouri. The Board recognizes that in such cases there is a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Board's analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996).
The evidence clearly shows that the Veteran has a current diagnosis of idiopathic pulmonary fibrosis. However, in order for the Veteran's current diabetes idiopathic pulmonary fibrosis to be recognized as service connected, the competent evidence of record must establish a direct link between the condition and an in-service injury or disease. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
No such evidence has been received. The Veteran's March 1954 service discharge examination was negative for any relevant abnormalities. The clinical evidence is negative for idiopathic pulmonary fibrosis until 2009, more than 54 years after service. The undated letter from M.S., M.D., submitted in March 2009, did not offer an opinion regarding the etiology of the diagnosed idiopathic pulmonary fibrosis. The May 2009 VA examiner was unable to offer an opinion regarding the etiology of the Veteran's diagnosed idiopathic pulmonary fibrosis without resorting to mere speculation and provided a rationale as to why such an opinion could not be provided. See Jones v. Shinseki, 23 Vet. App. 382 (2010) (in cases where an examiner is unable to render an opinion regarding the etiology of a condition, the examiner is required to provide an rationale as to why this is so and state whether there is additional evidence that would permit an opinion to be rendered). No other competent medical evidence has been submitted suggesting such a nexus between this specific Veteran and his service on a direct basis.
The Veteran has summarized numerous treatise articles asserting a possible association between exposure to jet fuel and idiopathic pulmonary fibrosis and government regulations outlining the hazards of working around jet fuel. A medical article or treatise can provide important support when combined with an opinion of a medical professional if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least a plausible causality based upon subjective facts rather than unsubstantiated lay opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). In this case the treatise articles are not combined with an opinion by a medical professional showing the associations cited in the treatises apply in this case, and in fact the Veteran has stated himself in his April 2011 Board hearing that no medical professional has confirmed the cause of his idiopathic pulmonary fibrosis.
VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence above the Board has carefully considered the lay evidence offered by the Veteran and his spouse in the form of their testimony at the Board hearing, his correspondence to VA, and his statements to various medical providers.
A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this case, although the Veteran believes his idiopathic pulmonary fibrosis is due to service, he is not competent to make that conclusion; as noted above the only medical opinion of record which directly addresses the question states that such an etiological relationship could not be determined without resort to mere speculation.
The Board also notes that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. 492, 494-95 (1992) (lay person may provide eyewitness account of medical symptoms). In this case, however, the record reflects that the Veteran has given varying accounts regarding the beginning of his symptoms. For example, in the Veteran's original claim for disability benefits submitted in March 2009, he indicated that his idiopathic pulmonary fibrosis began in January 1990. In a March 2009 statement, he traced his difficulty breathing to the mid 1990s. However, in May 2009, the Veteran told a VA examiner that he began experiencing symptoms in 1976 or 1977. Later in May 2009, the Veteran stated that his symptoms began in the mid 1970s. In August 2009, he indicated that his symptoms began in the 1970s. Even assuming that the earliest date reported by the Veteran regarding the onset of his symptoms is accurate, by his own statements, the Veteran did not begin experiencing symptoms until 16 years following his discharge from active duty. The Veteran's own statements accordingly do not show continuity of symptoms to merit consideration for service connection under 38 C.F.R. § 3.303(b).
Finally, the record does not indicate that the Veteran engaged in combat. As a result, service connection for idiopathic pulmonary fibrosis cannot be presumed under 38 U.S.C.A. § 1154 (a) or (b) (West 2002).
The Board does not doubt the sincerity of the Veteran's belief that he has idiopathic pulmonary fibrosis as a result of his active service. However, as discussed above, in this particular instance, his statements regarding etiology have not been found to be competent and are outweighed by other evidence of record.
In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55- 57 (1991).
ORDER
Service connection for idiopathic pulmonary fibrosis is denied.
REMAND
The Veteran's last VA audiological examination was performed in May 2009. During his April 2011 Board hearing, the Veteran specifically asserted that the symptomatology he experiences due to his service connected bilateral hearing loss disability has increased in severity since his last VA examination. Further, difficulty hearing is a symptom capable of lay observation, and so the Veteran's statements concerning increased difficulty hearing since his last examination are considered competent.
The Board further notes the Court has held that "in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report." Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). This was not done by the examiner who performed the May 2009 examination.
In Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991), the Court held that the duty to assist may include "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." In consideration of the Veteran's competent statements regarding an increase in the severity of his symptoms, and the Court's holding in Martinak, the Board finds that the Veteran should be afforded a new VA examination in connection with his claim for a higher disability rating for his bilateral hearing loss disability.
Additionally, the Board notes that in his August 2009 Notice of Disagreement, the Veteran remarked that he was terminated from a position in construction management because he was considered a risk due to his hearing loss. In his January 2010 VA form 9, the Veteran added that in 1992 he was terminated from an office manager position because of his inability to hear clearly on the telephone, and in 2004 he was terminated by Southern Management Group because of his inability to clearly understand instructions given to him by his superiors. The Veteran's spouse remarked in February 2011 that in the 1980s, the Veteran was terminated form an office manager position because he could not adequately communicate with customers on the phone. She added that he was terminated from another job because he could not hear properly in meetings or on the phone. In light of these statements, on remand, consideration should be given as to whether referral for extraschedular consideration is warranted under 38 C.F.R. § 3.321 due to marked interference with employment.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.)
1. The Veteran should be afforded an audiological evaluation by an examiner with sufficient expertise to determine the current severity of his service-connected bilateral hearing loss disability.
The claims folder must be made available to and reviewed by the examiner, and any indicated audiological studies should be performed.
In addition to dictating objective test results, the examiner's report should fully describe the effects of the Veteran's hearing loss disability on his occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007).
The RO or the AMC should ensure that the examiner provides all information required for rating purposes.
2. The RO or the AMC should also undertake any other development it determines to be warranted.
3. The RO or the AMC is requested to consider whether referral for extraschedular consideration is warranted under 38 C.F.R. § 3.321 due to marked interference with employment.
4. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond before the case is returned to the Board for further appellate action.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
______________________________________________
JOHN H. NILON
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs